Rutherford (Bankrupt) v Inspector-General in Bankruptcy

The case of Rutherford (Bankrupt) v Inspector-General in Bankruptcy involved a dispute between a bankrupt and the Inspector-General in Bankruptcy regarding the review of a decision made by a trustee. The matter was brought before the court by an application for judicial review of a decision made by the Inspector-General in Bankruptcy not to review a decision by the trustee to make an assessment of the bankrupt’s income and contribution under the Bankruptcy Act 1966 (Cth). The court was required to determine whether the Administrative Appeals Tribunal had the power to review the Inspector-General’s decision to refuse to review the trustee’s decision, and whether the Tribunal could proceed to review the trustee’s decision if it upheld a review of the Inspector-General’s decision.

The court held that the Administrative Appeals Tribunal had the power under section 139ZF of the Bankruptcy Act 1966 (Cth) to decide for itself whether to conduct a review of a decision by a trustee and, if so disposed, to do so. The court found that the words ‘may review’ in section 139ZF(a) and (b) of the Bankruptcy Act 1966 (Cth) are conjunctive, meaning that the Tribunal must consider both whether it is appropriate to review the decision and whether it is disposed to do so. The court found that the Inspector-General’s decision to refuse to review the trustee’s decision was not beyond the scope of the Tribunal’s review powers, and that the Tribunal could proceed to review the trustee’s decision if it was so disposed.

The court issued a writ of certiorari to bring the Inspector-General’s decision into the court and quash it, and a writ of mandamus to direct the Inspector-General to re-determine the decision according to law. The court also ordered that the first respondent pay the applicant’s costs in respect of the proceeding and in QUD109/2022, to be fixed in a lump-sum by a registrar if not agreed, save in respect of the costs of and incidental to the written submissions in respect of the competency of the appeal under section 44 of the Administrative Appeals Act 1975 (Cth).